EXHIBIT 6
PRINCIPAL UNDERWRITING AGREEMENT
THIS PRINCIPAL UNDERWRITING AGREEMENT, dated as of , 1997, between
ATLAS INSURANCE TRUST, a Delaware business trust (the "Trust"), and ATLAS
SECURITIES, INC., a California corporation ("Distributor"), is made with
reference to the following facts:
A. The Trust is an open-end management investment company.
B. Distributor has the facilities to sell and distribute the shares of
beneficial interests of the various series established from time to time
by the Trust (individually and collectively, a "Portfolio" and the
"Portfolios").
C. The Trust and Distributor desire to enter into an agreement to
provide for the sale and distribution of the Portfolios' shares.
NOW, THEREFORE, the parties agree as follows:
1. Distributor shall be the exclusive principal underwriter for the sale of
shares of the Portfolios, except as otherwise provided pursuant to paragraph
20 hereof. The terms "shares of the Portfolios" or "shares" as used herein
shall mean shares of beneficial interest issued by the various series
established by the Trust.
2. In sale of shares of the Portfolios, Distributor shall act as agent of
the Trust except in any transaction in which Distributor sells such shares as
a dealer to the public, in which event Distributor shall act as principal for
its own account.
3. The Trust shall sell shares only through Distributor except that the
Trust may at any time:
(a) Issue shares to any corporation, association, trust, partnership, or
other organization, or its, or their, security holders, beneficiaries, or
members, in connection with a merger, consolidation, or reorganization to
which the Trust is a party, or in connection with the acquisition of all
or substantially all the property and assets of such corporation,
association, trust, partnership, or other organization;
(b) Issue shares at net asset value to the holders of shares of other
series of the Trust or shares of beneficial interest of other investment
companies managed by Atlas Advisers, Inc. pursuant to any exchange or
reinvestment option made available as described in a current Prospectus
for the Portfolios;
(c) Issue shares at net asset value to its shareholders in connection
with the reinvestment of dividends and other distributions paid by the
Portfolios;
(d) Issue shares at net asset value to Trustees, officers, and employees
of the Trust, its investment manager, any principal underwriter of the
Trust, and their affiliates or affiliates of Golden
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West Financial Corporation, including any trust, pension, profit sharing,
or other benefit plan established for such persons, registered
representatives and other employees of dealers having Selling Agreements
with Distributor and with respect to all such persons listed, their
respective spouse, siblings, parents and children, and to other persons as
permitted by applicable rules adopted by the Securities and Exchange
Commission under the Investment Company Act of 1940 (the "Act"), as in
effect from time to time and to other persons as described in a Prospectus
for the Portfolios;
(e) Issue shares at net asset value to the sponsor organization,
custodian, or depository of a periodic or single payment plan, or similar
plan for the purchase of shares of the Portfolios, purchasing for such
plan; and
(f) Issue shares in the course of any other transaction specifically
provided for in a Prospectus for the Portfolios, or upon obtaining the
written consent of Distributor thereto.
4. Distributor shall devote its best efforts to the sale of shares of the
Portfolios and shares of any other mutual funds managed by Atlas Advisers,
Inc., for which Distributor has been authorized to act as a principal
underwriter for the sale of their shares. Distributor shall maintain a sales
organization suited to the sale of shares of the Portfolios and shall use its
best efforts to effect such sales and maintain appropriate qualification to do
so in all those jurisdictions in which it sells or offers shares for sale and
in which qualification is required.
5. Within the United States of America, Distributor shall offer and sell
shares only to insurance company separate accounts, or to such broker-dealers
as are members in good standing of the National Association of Securities
Dealers, Inc. ("NASD"), or to persons legally engaged in securities sales
activities who are exempt from NASD membership in accord with applicable law.
Shares sold to such broker-dealers or other sellers of securities shall be for
resale by such persons only to insurance company separate accounts at the
public offering price set forth in an effective Prospectus, which is part of
the Trust's Registration Statement in effect under the Securities Act of 1933
(the "1933 Act"), as amended, at the time of such offer or sale (herein, the
"Prospectus"). Distributor may sell shares to such persons (a "dealer" or
"dealers") at such discounts from said public offering price as are set forth
in the Prospectus, and/or in a Selling Agreement between Distributor and the
dealer, but neither such discounts nor commissions shall exceed the sales
charge or discounts referred to in the Prospectus. Distributor shall not
without the consent of the Trust sell or offer for sale any shares of a
Portfolio other than as principal underwriter under this Agreement.
6. In its sales to dealers, it shall be the responsibility of Distributor to
ensure that such dealers are appropriately qualified to transact business in
securities under applicable laws, rules, and regulations promulgated by such
national, state, local, or other governmental or quasi-governmental
authorities as may in a particular instance have jurisdiction.
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7. The applicable public offering price of shares shall be the price which
is equal to the net asset value per share plus such sales charge as may be
provided for in the Prospectus. Net asset value per share shall be determined
for the Portfolios in the manner and at the time or times set forth in the
subject to the provisions of the Prospectus of the Portfolios.
8. All orders for shares received by Distributor, unless rejected by
Distributor or the Trust, shall be forwarded by the Distributor to the
Transfer Agent upon receipt and the Transfer Agent upon receipt will confirm
an offering price determined in accordance with the provisions of the
Prospectus and the Act, and applicable rules in effect thereunder. Distributor
shall not hold orders subject to acceptance nor otherwise delay their
execution. The provisions of this paragraph shall not be construed to restrict
the right of the Trust to withhold shares of the Portfolios from sale under
paragraph 17 hereof.
9. The Trust or the Transfer Agent shall be promptly advised of all orders
received, and shall cause shares of Portfolios to be issued upon payment
received in accord with policies established by the Trust and Distributor.
10. Distributor shall adopt and follow procedures as approved by the
officers of the Trust for the confirmation of sales to dealers, the collection
of amounts payable by dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD
and the Act, as such requirements may from time to time exist.
11. The compensation for the services of Distributor as a principal
underwriter under this Agreement shall be that part of the sales charge, if
any, which is retained by Distributor after allowance of discounts to dealers
as provided for in paragraph 5 hereof.
12. The Trust agrees to use its best efforts to maintain its registration as
an open-end management investment company under the Act.
13. The Trust agrees to use its best efforts to maintain an effective
prospectus under the 1933 Act, and warrants that such prospectus will contain
all statements required by and will conform with the requirements of the 1933
Act and the rules and regulations thereunder, and that no part of any such
prospectus, at the time the Registration Statement of which it is a part is
ordered effective, will contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein not misleading. Distributor agrees and warrants
that it will not in the sale of Portfolio shares use any prospectus,
advertising, or sales literature not approved by the Trust or its officers nor
make any untrue statement of a material fact nor omit the stating of a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they made, not misleading.
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14. Subject to the requirements and restrictions of the Act and the 1933 Act
and the rules and regulations promulgated thereunder.
(a) Distributor agrees to indemnify and hold the Trust harmless from any and
all loss, expense, damage, and liability resulting from a breach by
Distributor of the agreements and warranties in paragraph 13, and from the use
of any sales literature, information, statistics, or other aid or device
prepared and employed by the Distributor and not approved by the Company in
connection with the sale of shares of the Funds; and
(b) The Trust agrees (i) not to hold Distributor or any of its officers or
employees liable for, and (ii) to indemnify or insure the Distributor and its
officers and employees ("Indemnified Parties") against, any costs and
liabilities the Indemnified Parties may incur as a result of any claim against
the Indemnified Parties in the good faith exercise of their powers hereunder
(excepting matters as to which the Indemnified Parties shall be finally
adjudged to have been guilty of willful misconduct or gross negligence, or in
violation of applicable law) or arising out of an act or omission of the
custodian, or of any broker or agent selected by the Distributor in a
commercially reasonable manner.
15. To the extent permitted under the Trust's Distribution Plan adopted
under Rule 12b-1 under the Act, the expense of each printing of each
Prospectus and each revision thereof or addition thereto deemed necessary by
the Trust officers to meet the requirements of applicable laws shall be borne
by the Trust.
16. As applicable, the Trust agrees to use its best efforts to qualify and
maintain the qualification of an appropriate number of its shares for sale
under the securities laws of such states as Distributor and the Trust may
approve. Any such qualification may be withheld, terminated, or withdrawn by
the Trust at any time in its discretion. The expense of qualification and
maintenance of qualification shall be borne by the Trust, but Distributor
shall furnish such information and other material relating to its affairs and
activities as may be required by the Trust or its counsel in connection with
such qualifications.
17. The Trust may withhold shares of the Portfolios from sale in any state
or country temporarily or permanently if, in the opinion of its counsel, such
offer or sale would be contrary to law or if the Board of Trustees or the
President or any Vice President of the Trust determines that such offer or
sale is not in the best interest of the Trust. The Trust will give prompt
notice to Distributor of any withholding and will indemnify it against any
loss suffered by Distributor as a result of such withholding by reason of non-
delivery of Portfolio shares after a good faith confirmation by Distributor of
sales thereof prior to receipt of such withholding.
18. (a) This Agreement may be terminated at any time, without payment of any
penalty, by the Trust on sixty (60) days' written notice to Distributor, or by
Distributor on like notice to the Trust.
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(b) The Agreement may be terminated by either party upon five (5) days'
written notice to the other party in the event that the Securities and
Exchange Commission has issued an order or obtained an injunction or other
court order suspending effectiveness of the Registration Statement covering
the shares of the Portfolios.
(c) This Agreement may also be terminated by the Trust upon five (5) days'
written notice to Distributor, should the NASD expel Distributor or suspend
its membership in that organization.
Distributor shall inform the Trust promptly of the institution of any
proceedings against it by the Securities and Exchange Commission, the NASD or
any state regulatory authority. The Trust shall inform Distributor promptly of
the institution of any proceedings against it by the Securities and Exchange
Commission, the NASD or any state regulatory authority, of the revocation,
expiration or suspension of qualification of the Trust's securities in any
state or other jurisdiction in which such securities have been or will be
qualified.
19. This Agreement shall not be assignable by either party hereto without
the prior written permission of the other party and in the event of assignment
without such permission shall automatically terminate forthwith. The term
"assignment" shall have the meaning defined in the Act.
20. The Trust may, upon sixty (60) days' written notice to Distributor from
time to time designate other principal underwriters of their shares with
respect to areas other than the North American continent, Hawaii, Puerto Rico,
and such countries as to which the Company may have expressly waived in
writing its right to make such designation. In the event of such designation,
the right of Distributor under this Agreement to sell shares in the areas so
designated shall terminate, but this Agreement shall remain otherwise in full
effect until terminated in accordance with the provisions of paragraphs 18 and
19 hereof.
21. No provision of this Agreement shall protect or purport to protect
Distributor against any liability to the Trust or holders of shares of the
Portfolios for which Distributor would otherwise be liable by reason of
willful misfeasance, bad faith, or negligence.
22. Unless sooner terminated in accordance with the provisions of paragraphs
18 and 19 hereof, this Agreement shall continue in effect until December 31,
1998 and shall continue in effect from year to year thereafter, but only so
long as such continuance is specifically approved at least annually by (i) the
vote of a majority of the Trustees of the Trust who are not parties to this
Agreement or interested persons (within the meaning of the 0000 Xxx) of the
Trust or Distributor cast in person at a meeting called for the purpose of
voting on such approval, and (ii) either the Board of Trustees of the Trust or
a vote of a majority (within the meaning of the 0000 Xxx) of the outstanding
voting securities of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate original by their officers thereunder duly authorized
and their corporation seal to be affixed as of the day and year first written
above.
Atlas Insurance Trust
a Delaware business trust
By___________________________________
Xxxxx X. XxXxxxx
Chief Operating Officer and
Group Senior Vice President
Atlas Securities, Inc.
a California corporation
By___________________________________
Xxxxx X. XxXxxxx
Chief Operating Officer and
Group Senior Vice President
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